Case Summaries

Public Prosecutor v Sakthikanesh s/o Chidambaram and other appeals and another matter

SUPREME COURT SINGAPORE

SUPREME COURT OF SINGAPORE

25 July
2017

Media
Summary

Public Prosecutor v Sakthikanesh s/o Chidambaram and
other appeals and another matter

Magistrate’s
Appeals No 9259, 9260 and 9312 of 2016; Criminal Motion No 13 of 2017

Decision
of the High Court (delivered by Chao Hick Tin JA)

Background

1MA 9259 of 2016, MA 9260 of 2016 and MA 9312 of
2016 (“MA 9259” “MA 9260” and “MA 9312”) were appeals brought by the Public
Prosecutor against the sentences imposed by the State Court on three individuals
who have defaulted on their obligations to serve National Service (“NS
defaulters”). Following the hearing on 25 April 2017, the High Court allowed
the appeals and enhanced the sentence imposed on each of the defaulters. At the
time judgment was delivered, the court provided brief reasons for its decision.
The full written grounds of decision were released today.

2The respondent in MA 9259, Sakthikanesh s/o
Chidambaram (“Sakthikanesh”), and the respondent in MA 9260, Vandana Kumar s/o
Chidambaram (“Vandana”), are brothers. Both were born in Singapore, to a father
who is an Indian citizen and a Singaporean mother. The brothers’ parents have
had their matrimonial home in India ever since their marriage, but the mother returned
to Singapore on each of the two occasions to give birth to them. They were each
brought back to India soon after birth, where they were raised and educated.

3When Sakthikanesh attained sixteen-and-a-half-years of age, he was obliged,
pursuant to provisions in the Enlistment Act (Cap 93, 2001 Rev Ed), to obtain a Valid Exit Permit
(“VEP”) to leave or remain outside Singapore. He did not obtain a VEP.
Subsequently, he also failed to register for NS when he was required to do so
by a NS Registration Notice and a Further Reporting Order (“FRO”) issued to him
by the Ministry of Defence (“MINDEF”). He only returned to Singapore after completing
his university studies, and enlisted into NS on 11 September 2014, when he was
23 years old. During his NS, Sakthikanesh was selected for and entered the Officer
Cadet School (“OCS”), and received good testimonials from his superiors.

4Like his brother, Vandana failed to obtain a VEP
when he attained sixteen-and-a-half
years of age, and subsequently also failed to register for NS. He only returned
to Singapore and enlisted into NS when he was 21 years old. While Vandana was not
selected for OCS, he was chosen to participate in the 2015 National Day Parade
as a Gunner on display and for an overseas training exercise. He also emerged
as the best trooper in his section after attaining the top score during an Army
Training Evaluation in February 2016, and was named Company Soldier of the
Month of May 2016. Vandana also received good testimonials from his superiors.

5Sakthikanesh
was charged for his failure to comply with the FRO over a period of about five
years and six months. Another charge, for remaining outside Singapore without a
VEP for a period of about five years and nine months, was taken into
consideration. Vandana was likewise charged for his failure to comply
with a FRO over a period of about three years and four months, with another
charge for remaining outside Singapore without a VEP for a period of about
three years and 10 months taken into consideration.

6Sakthikanesh
was sentenced to three weeks’ imprisonment, while Vandana was given a fine of
$6,000. The district judge who passed their sentences was of the view that they
should receive sentencing discounts for their performance during NS and also the
fact that they had not grown up in Singapore and had not enjoyed the benefits
of Singapore’s social and physical infrastructure.

7The respondent in MA 9312, Ang Lee Thye (“Ang”), was born in Singapore and
educated here until he moved with his family to the United States when he was
14 years of age. He failed to obtain a VEP to remain overseas when he was required
to do so under the Act, and also failed to comply with Registration Notices
issued by MINDEF’s Central Manpower Base (“CMPB”). Despite being in contact
with the CMPB at various points over the years and being advised by the CMPB to
return to Singapore as soon as possible so as not to prolong his default period,
Ang only returned to Singapore at the age of 41, beyond the statutory
age of 40 and when he could no longer fulfil any of his NS obligations. The
total length of his period of default was about 23.5 years. He was sentenced to
24 months’ imprisonment, after the district judge took into account mitigating
factors such as the fact that he had pleaded guilty, voluntarily surrendered
and had no NS-related antecedents.

The issues

8The court considered whether exceptional NS
performance should be regarded as a mitigating factor in the sentencing of NS
defaulters. It also considered how other factors, such as the length of the
period of default, an NS defaulter’s degree of substantial connection to
Singapore, whether he claimed trial or pleaded guilty, and whether he
voluntarily surrendered or was arrested, could play a part in the determination
of the appropriate sentence.

The court’s grounds of
decision

9The court held that the standard of performance
of an NS defaulter who returned to serve NS should not, as a general rule, be a
relevant consideration for the purpose of sentencing. This was because
exceptional NS performance, which happens after
the conduct constituting the offence, reduces neither the defaulter’s
culpability nor the harm he had caused by his offence. The culpability of NS
defaulters lies in the unfair advantage that they gained over their law-abiding
peers by being able to pursue their personal goals while their peers were
serving their NS obligations. In cases involving extended periods of defaults,
the NS defaulters in fact avoided part of or the whole of their NS obligations,
if they returned at an age where they could no longer serve full-time NS or
complete their post-ORD reservist obligations in full. They harm the
operational readiness of the armed forces, and also the morale of fellow
citizens who had made personal sacrifices to serve their NS obligations when
they were called upon to do so. This could in turn lead to growing resentment
and the loss of public support for NS, threatening the ability of our armed
forces to ensure Singapore’s national security.

10Further, allowing an NS defaulter to enjoy a
discount off his sentence because he performed well when he finally decided to
serve NS might be seen as, or tantamount to, giving preferential treatment to
individuals with certain qualities. It might unfairly prejudice NS defaulters
who are less fit. It could also undermine the sentencing objective of general
deterrence, as it might send a message to potential defaulters that they could
defer their NS obligations and try to make up for that later.

11In the determination of the appropriate sentence
for an NS defaulter, the length of the period of default would, as a general
rule, be the key consideration. In general, a period of default exceeding two
years would attract a custodial sentence. This was because a person who had
defaulted on his NS obligations for two years would only commence serving
full-time NS when his peers had already completed theirs. This derogated from
the principle of equity which entailed everyone who is required to serve NS to
serve at around the same age so that they would all bear similar interruptions
to their studies or careers at similar stages of their lives.

12The statutory maximum sentence of 36 months’
imprisonment should be the starting point in the sentencing of NS defaulters
whose period of default was around 23 years or more, as they would not only
have evaded the whole of their full-time NS obligations, but also their
post-ORD reservist obligations. These offenders would constitute the worst
category of NS defaulters.

13In
between the two ends of the custodial range would be those who, by reason of
their default, had impaired their ability to serve their NS obligations, either
in terms of their physical ability or in terms of duration. The sentence to be
meted out to an NS defaulter should not increase linearly with the length of
his period of default. Instead, the rate of increase in sentence should be
amplified with longer periods of default, to reflect the decline in a person’s
physical fitness with age (and hence his ability to serve NS especially in a
combat vocation), and to create a progressive disincentive for NS defaulters to
delay their return to resolve their offences. In addition, there should be a
spike in the sentence to be meted out to an NS defaulter once his period of
default crosses the 10-year mark, since he would unlikely be able to serve his
post-ORD reservist obligations in full before he reaches the statutory age of
40.

14The following sentencing benchmarks, based on
the length of the period of default, were laid down by the court as appropriate
starting points in determining the sentence for an NS defaulter:

Peg

Length of
Period of Default

Starting Point
for Sentence (Imprisonment Term)

1

2 to 6 years

2 to 4 months

2

7 to 10 years

5 to 8 months

3

11 to 16 years

14 to 22 months

4

17 to 23 (or more) years

24 to 36 months

15As for the other factors, the court held that,
in sentencing NS defaulters:

(a)The sentence to be meted out should not be
calibrated based on whether an NS defaulter has a substantial connection to
Singapore, or the amount of benefits he has enjoyed as a Singapore citizen. Any
other view would severely undermine the principle of universality and equity by
differentiating between classes of Singapore citizenship, when in truth, no
such differentiation exists. The determination of whether a male Singaporean
has a substantial connection to Singapore and so should be required to serve NS
was a matter with policy implications that was within the prerogative of
MINDEF. As long as MINDEF had issued the enlistment papers to a male
Singaporean, that person would need to serve NS and he would be liable for an
offence under the Act if he failed to comply.

(b)Voluntary surrender could be a mitigating
factor, as it could be evidence of remorse. There was also public interest in
encouraging NS defaulters to surrender early so that they could still serve their
NS obligations. An early surrender would generally attract greater mitigating
value than a surrender later in the day.

(c)A
plea of guilt would, in most cases, attract either very limited or no
mitigating value at all. The nature of NS default offences was such that these
offences could easily be proved. Hence, a person accused of defaulting on his
NS obligations would, in reality, have very little choice but to plead guilty
in the face of undisputed evidence against him, such that his plea of guilt
should not be said to have been motivated by sincere remorse. Generally, in
cases involving NS defaulters who voluntarily surrendered and then pleaded
guilty, the mitigating value of his voluntary surrender and plea of guilt should
be considered holistically, with a single discount being applied. This was
because there was considerable overlap in their mitigating value – both were
mitigating insofar as they reveal contrition on the NS defaulter's part.
Treating them as distinct mitigating factors would present a real risk of
double-counting and excessive weight being placed on them.

16Having regard to Sakthikanesh’s period of
default, which was about five years and six months, the starting point in the
determination of his sentence was around 14 weeks’ imprisonment. As he had
voluntarily surrendered and pleaded guilty, the court decided that an
imprisonment term of 10 weeks was appropriate.

17As for Vandana, the starting point in the
determination of his sentence, based on the length of his period of default
which was about three years and four months, was around 10 weeks’ imprisonment.
As he had voluntarily surrendered and pleaded guilty, the court decided to
sentence him to seven weeks’ imprisonment.

18For Ang, whose period of default was 23.5 years,
the starting point in the determination of his sentence was 36 months’
imprisonment. While there was evidence that suggested that he might have
deliberately timed his return to Singapore so that he would not have to serve
any of his NS obligations, the court decided that some credit should,
nevertheless, still be given to his voluntary surrender and plea of guilt. Ang was
given an aggregate sentence of 33 months’ imprisonment.

This summary is provided to
assist in the understanding of the Court’s judgment. It is not intended to be a
substitute for the reasons of the Court.